McKELVEY v. DUNCAN

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

Pro se petitioner Arnold McKelvey ("McKelvey") filed this
timely petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. McKelvey seeks to vacate his November 1998 conviction for
possession of a weapon in the third degree. He contends that his
confinement by the State of New York is unlawful for the
following reasons: (1) the trial court's decision to suppress
statements made to police and not the physical evidence of the gun was erroneous; (2) the trial court's determination to
sentence him as a persistent violent felon, pursuant to New York
law, was inconsistent with Apprendi v. New Jersey, 530 U.S. 466
(2000); (3) his trial counsel rendered ineffective assistance to
him by failing to challenge the validity of the convictions
underlying the petitioner's classification as a persistent
violent felon, resulting in the court's imposition of an unlawful
sentence; and (4) his trial counsel rendered ineffective
assistance to him by advising him not to contest the validity of
the prior convictions used by the court to classify him as
persistent violent felony offender.

McKelvey's petition was referred to Magistrate Judge Kevin
Nathaniel Fox for a Report and Recommendation ("Report"). The
Report, to which McKelvey has filed objections, recommends that
the petition be denied. For the following reasons, the Report is
adopted, and the petition is denied.

BACKGROUND

The relevant facts are set forth in the Report and summarized
here. McKelvey was arrested on November 6, 1997 after he fled
from three plain clothed police officers who had noticed him
carrying a plastic bag that was later recovered containing a gun.
Prior to trial, McKelvey moved to suppress the physical evidence
of the gun, as well as his post-arrest statement that "I don't
know anything about the bag. Someone gave it to me to leave on
the bench." Both pieces of evidence had been presented to the grand jury to obtain his indictment. The trial court
suppressed his statements, but admitted the gun into evidence.
McKelvey was convicted of possessing a weapon in the third
degree.

At sentencing, the prosecution presented evidence, pursuant to
N.Y. Crim. Proc. Law § 400.16 and Penal Law § 70.08, that
McKelvey had been convicted of three predicate violent felonies
between January 1981 and April 1988. With the advice of counsel,
McKelvey admitted that he was the person named in the predicate
felony statement and he chose not to challenge the
constitutionality of his past convictions. The court declared
McKelvey a mandatory persistent felony offender, making him
eligible for an enhanced sentence. McKelvey was sentenced to
fifteen years to life imprisonment.

Direct Appeal

McKelvey appealed his conviction on the grounds that a police
officer's suppression hearing testimony was false, and that his
sentence was enhanced based on prior convictions that were not
alleged or submitted to a jury. On October 9, 2001, the New York
State Supreme Court, Appellate Division, First Department,
unanimously affirmed McKelvey's conviction. The court upheld the
findings of the suppression hearing and found that McKelvey's
constitutional challenges were not properly preserved for appeal.
The Appellate Division found that even assuming McKelvey's
constitutional challenges were properly preserved for appeal, the arguments lacked merit. See People
v. McKelvey, 730 N.Y.S.2d 857, 858 (1st Dep't 2001). The Court
of Appeals denied McKelvey's application for review. See
People v. McKelvey, 764 N.E.2d 404, 404 (N.Y. 2001).

Post-Judgment Motion

In addition to his direct appeal, McKelvey also made a
post-judgment application to the trial court pursuant to N.Y.
Crim. Proc. Law §§ 440.10 and 440.20, requesting the court to
vacate his conviction for three reasons: (1) he was not
adequately advised on his option to challenge the
constitutionality of his past convictions during his sentencing
proceeding; (2) his trial counsel failed to oppose the statement
of McKelvey's past convictions, which McKelvey claimed were
obtained illegally for a variety of reasons; and (3) he received
ineffective representation from his appellate counsel, who
McKelvey alleged had a conflict of interest.

The trial court found that McKelvey had been adequately advised
at trial, and following a review of the record pertaining to each
of McKelvey's attacks on his prior convictions, that his prior
convictions had not been obtained illegally. The trial court also
found that his claims of ineffective assistance were without
merit, and in any event, had not been raised on direct appeal and
therefore were procedurally barred. The court held that
McKelvey's claim of ineffective assistance by his appellate
counsel on his prior convictions could not be raised through a N.Y. Crim. Proc. Law § 440.10 motion, and that in any event, this
claim was meritless. McKelvey did not seek leave to appeal this
decision in the Appellate Division.

DISCUSSION

A reviewing court "may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b) (1) (C). The court shall make a de
novo determination of those portions of the report to which
objection is made. United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir. 1997).

Habeas petitions are subject to the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With
respect to any claim that was adjudicated on the merits in state
court, the petition must be denied unless the state court's
adjudication

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision based on an unreasonable
determination of the facts in light of the evidence
presented in the state court proceeding.

28 U.S.C. § 2254(d) (emphasis supplied). AEDPA further mandates
that a state court's determination of a factual issue shall be
presumed correct and may be rebutted only by clear and convincing
evidence. 28 U.S.C. § 2254(e) (1). Fourth Amendment Claim

Where the state has provided an opportunity for the "full and
fair litigation of a Fourth Amendment claim, the Constitution
does not require that a state prisoner be granted federal habeas
corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial."
Stone v. Powell, 428 U.S. 465, 481-82 (1976). Federal courts
may only review such a claim "(a) if the state has provided no
corrective procedures at all to redress the alleged fourth
amendment violations; or (b) if the state has provided a
corrective mechanism, but the defendant was precluded from using
that mechanism because of an unconscionable breakdown in the
underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d
Cir. 1992).

McKelvey availed himself of the New York procedure for
litigating Fourth Amendment claims pursuant to N.Y. Crim. Proc.
Law §§ 710 et seq. McKelvey does not claim that he was
precluded from using this mechanism because of an unconscionable
breakdown in the underlying process. Moreover, McKelvey's Fourth
Amendment claim was reviewed and found meritless by the Appellate
Division, and leave to appeal was subsequently denied by the
Court of Appeals. McKelvey has enjoyed a full and fair
opportunity to litigate this claim, and therefore habeas review
is precluded.

Apprendi Claim

"[A]n adequate and independent finding of procedural default will bar federal habeas review of [a] federal claim . . . even
where the state court has also ruled in the alternative on the
merits of the federal claim." Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990). This rule applies absent a "showing of cause
for the default and resulting prejudice, or a demonstration that
failure to consider the federal claim will result in a
fundamental miscarriage of justice." Velasquez, 898 F.2d at 9
(citations omitted). A "miscarriage of justice" claim is a claim
that "the petitioner is actually innocent." Sweet v. Bennett,
353 F.3d 135, 141 (2d Cir. 2003). With respect to cause and
prejudice, a petitioner must show that "some objective factor
external to the defense impeded counsel's efforts to comply with
the State's procedural rule," Amadeo v. Zant, 486 U.S. 214, 222
(1988), and convince the court of a reasonable probability that
the trial's outcome would have been different so as to "undermine
confidence in the verdict." Strickler v. Greene, 527 U.S. 263,
289 (1999) (citation omitted).

McKelvey's Apprendi claim is barred due to an adequate and
independent finding of procedural default by the Appellate
Division. See People v. McKelvey, 730 N.Y.S.2d 857, 858 (1st
Dep't 2001).*fn1 The Report notes that McKelvey has shown
neither cause for the default and resulting prejudice nor that
failure to consider the claim will result in a fundamental
miscarriage of justice. McKelvey objects to the Report, stating
that he will suffer prejudice because he has a viable claim under Apprendi v.
New Jersey, 530 U.S. 466 (2000), as well as Blakely v.
Washington, 124 S.Ct. 2531 (2004). McKelvey fails to articulate
any cause, however, for his default. McKelvey does not offer any
reason for his failure to raise the claim in the trial court,
which formed the basis for the adequate and independent finding
of procedural default. McKelvey also does not claim that he is
actually innocent. McKelvey's objection is therefore irrelevant,
and his Apprendi claim is procedurally barred.

Ineffective Assistance of Counsel Claims

A federal court may not grant habeas relief "unless it appears
that . . . the applicant has exhausted the remedies available in
the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). Within the
Second Circuit, a petitioner has exhausted his state remedies
when he has "(i) presented the federal constitutional claim
asserted in the petition to the highest state court (after
preserving it as required by state law in lower courts) and (ii)
informed that court (and lower courts) about both the factual and
legal bases for the federal claim." Ramirez v. Attorney Gen. of
New York, 280 F.3d 87, 94 (2d Cir. 2001). "[W]hen a `petitioner
failed to exhaust state remedies and the court to which
petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims
procedurally barred,' federal habeas courts also must deem the
claim procedurally defaulted." Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson,
501 U.S. 722, 735 n. 1 (1999)).

New York law allows thirty days from a party's receipt of an
order to seek a leave of appeal to the Appellate Division from
that order. See N.Y. Crim. Proc. Law § 460.10(4). An
application for an enlargement of that time may be made pursuant
to N.Y. Crim. Proc. Law § 460.30, but "[s]uch motion must be made
with due diligence after the time for the taking of such appeal
has expired, and in any case not more than one year thereafter."
N.Y. Crim. Proc. Law § 460.30.

McKelvey did not seek leave to appeal the trial court's denial
of his post-judgment motions within the permitted thirty day
period, or, for that matter, within the one year period for
enlargement of that time. The Report therefore properly concludes
that McKelvey's ineffective assistance of counsel claims are
procedurally barred as a result of his failure to exhaust state
remedies.

McKelvey objects that the Report failed to consider the cause
for his failure to seek leave to appeal the post-judgment
decision to the Appellate Division. McKelvey asserts that an
inmate law clerk who had been assigned to assist McKelvey in
preparing his application for leave to appeal was confined to his
cell for a violation of prison rules and did not return the legal
papers that McKelvey required to prepare his application.
McKelvey fails to explain, however, why he did not submit a
timely application for leave to appeal explaining the circumstances he now cites, much less why he failed to file an
application for an entire year thereafter. Such belated
justifications for a failure to exhaust state remedies do not
constitute good cause. Moreover, although McKelvey states that a
federal claim "can be reviewed if there is a potential that
failure to do so will result in a miscarriage of justice," he
does not allege actual innocence. His habeas petition for
ineffective assistance at trial is therefore procedurally barred
for failure to exhaust state remedies.

CONCLUSION

The Report is adopted and the petition for a writ of habeas
corpus is denied. In addition, I decline to issue a certificate
of appealability. The petitioner has not made a substantial
showing of a denial of a federal right, and appellate review is
therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235,
241 (2d Cir. 1998). I also find pursuant to Title 28, United
States Code, Section 1915(a)(3), that any appeal from this order
would not be taken in good faith. Coppedge v. United States,
369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this
petition.

SO ORDERED.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.